There has been a lot of caselaw about on-call time and NMW (National Minimum Wage). So it’s no surprise that there has been a recent important development.
This was a case taken to the Supreme Court (formerly the House of Lords) by a group of carers whose job involves sleeping overnight in case the cared-for person wakes up and needs assistance.
Is this time spent ‘on call’, working time for the purposes of receiving the national minimum wage? Is it working time that should count towards the limits set out in the Working Time Regulations?
Both of these questions continue to confuse employers and employees alike. However recent cases have given clarity on what level of pay an employee can expect for sleeping at the workplace over night and if “standby” qualifies as working time.
In Mencap v Tomlinson-Blake and Shannon v Rampersad the Supreme Court finally answered this question. The workers were bringing the case as they were only paid a flat rate of £30 for the entire sleep-in shift (much lower than the NMW hourly rate).
The Court of Appeal had held that if the workers were merely available for work whilst sleeping rather than actually performing any work then they would not be entitled to the NMW. However if they were awakened and had to perform duties then they should be paid the NMW for that part of their shift. So held the Court of Appeal.
The Supreme Court dismissed the appeal, finding for the employer. It held that sleep-in care workers are entitled to be paid the national minimum wage only when they are awake for the purposes of working, not when they are sleeping.
So much for on-call time and NMW. Closely linked to this is the question of whether on-call time should be classed as working time for the purpose of the Working Time Regulations.
The European Court of Justice (ECJ,) whose judgments are still taken into account despite Brexit, has ruled that standby is working time even if the worker is not present at work. But you need to look at the constraints imposed on the worker during that time. If they are free to manage their time and pursue other interests and the impact on them is insignificant then this may not be regarded as working time. The frequency of call-outs during standby is also a key factor in deciding if the standby period was truly working time as this could impose on the freedom of the worker to manage their own time.
By Jenny Summers
Image used under CC courtesy of Rich Moffitt